ROSEMARY LEDET, Judge.
This is a criminal appeal. The defendant, David Henry, appeals his conviction and sentence for aggravated and forcible rape. The principal issue raised on appeal is whether the trial court erred in allowing the State to introduce evidence of a prior sex crime — a 1978 conviction for attempted aggravated rape — under La. C.E. art. 412.2. Finding no error, we affirm.
On November 5, 2009, Mr. Henry was indicted on two counts: Count One was for aggravated rape, a violation of La. R.S. 14:42; and Count Two was for forcible rape, a violation of La. R.S. 14:42.1. On November 13, 2009, he was arraigned and pled not guilty. Following a three day trial, a twelve person jury found Mr. Henry guilty as charged on both counts. On April 8, 2011, the trial court sentenced Mr. Henry on Count One to life imprisonment at hard labor and on Count Two to forty years at hard labor. The trial court ordered that both sentences be served without benefit of parole, probation, or suspension of sentence. On the same date, the trial court denied Mr. Henry's motion to reconsider the sentence and granted his motion for appeal. This appeal followed.
Mr. Henry was tried and convicted for the aggravated rape of R.C.
R.C. testified that the first rape occurred in 2008 when she was twelve years old; she stated that it occurred before her birthday (May 5th) but after Mardi Gras. She explained that it occurred while her mother was at work. She further explained that Mr. Henry came into her room, pulled her pants down, got on top of her, and put his penis in her vagina. She started crying and screaming for him to stop. He told her to shut up and did not stop until white stuff came out of his penis. He got off her, told her to shut up, and instructed her not to tell anyone. He threatened that if she told anyone he would kill her, her mother, and her brothers.
R.C. testified that the last rape occurred when she was fourteen years old; however, she did not recall the details of that occurrence. She further testified that
In July 2009, R.C. went to Atlanta, Georgia to visit her older sister, I.F., for about a month. R.C. testified that she made the trip to Atlanta because she wanted to get away from Mr. Henry and "[t]he raping." While she was in Atlanta, R.C. noticed that her stomach was getting big and that she was throwing up every morning. Likewise, her older sister, I.F., also noticed that R.C. was gaining weight in her middle section, that R.C. often was sick to her stomach, and that there was vomit residue in the bathroom that R.C. used. Although I.F. suspected that R.C. might be pregnant, I.F. did not believe that R.C. was having sexual relations.
In mid-August 2009 when I.F. brought R.C. back to New Orleans for school, I.F. and her cousin tricked R.C. into giving a urine sample; they told R.C. that the cousin needed it to submit for an employment drug screening. After they obtained the urine sample, they performed two home pregnancy tests that both came back positive. When confronted with the test results, R.C. began crying. R.C. stated that she did not want to be pregnant, that it was not her fault, and that her mother's boyfriend had been raping her. I.F. questioned R.C. about the rapes and asked her if she was telling the truth; R.C. replied: "Yes, my mama's boyfriend had been raping me." R.C. also told I.F. that she had never told anyone about the rapes because she was scared. R.C. explained that the mother's boyfriend had threatened to kill her and her mother if she told anyone. I.F. did not recall whether R.C. identified the boyfriend by name. After learning about the rapes, I.F. contacted her Uncle Melvin, who everyone in the family went with their problems. Her uncle met I.F. and R.C. at their mother's (S.C.'s) residence, and they informed their mother, S.C., that R.C. was pregnant. R.C. told her mother: "David has been raping me."
After disclosing to S.C. that she had been raped, R.C. talked to both the police and physicians. On August 11, 2009, Detective Jounay Ross, who was employed as a child abuse detective for the New Orleans Police Department ("N.O.P.D."), was designated the lead investigator on R.C.'s case. Detective Ross referred R.C. to the Child Advocacy Center for interviews, and she monitored the interviews. On August 12, 2009, Daniel Dooley, a forensic examiner for the Child Advocacy Center, conducted a forensic interview of R.C. He identified a piece of paper on which R.C. wrote the word "D-I-C-K" during the interview because she did not want to say that word out loud.
Dr. Jamie Jackson, who was qualified as an expert in child abuse pediatrics, testified that she was employed by the Child Advocacy Center. Dr. Jackson was present in October 2009 when Dr. Yameka Head, the attending physician, examined R.C. Dr. Jackson testified that R.C.'s history was consistent with that of a sexually
In November 2009, R.C. gave birth to a baby girl. A few days after the baby was born, Detective Ross came to the hospital and obtained buccal swabs from the inner jaw of R.C. and her baby. Detective Ross explained that she enlisted a nurse to actually take the swabs because she (the detective) was ill. She thought that she might have been coming down with a cold or the flu, and she did not want to expose R.C. or her baby. A swab was also taken from Mr. Henry. Due to an apparent mislabeling of the first set of DNA samples (discussed below), Detective Ross personally took a second buccal swab from R.C. and from her baby, who by that time, had been adopted. Another sample was also obtained from Mr. Henry.
Kathryn Moyse, a DNA analyst from Scales Biolab in Camden, Mississippi, was qualified by joint stipulation as an expert in forensic DNA analysis. Ms. Moyse testified that the first set of DNA samples from R.C., her baby, and Mr. Henry showed that R.C. was Mr. Henry's child, but R.C.'s baby was not Mr. Henry's child. Ms. Moyse further testified that "[a]fter the testing was completed it appeared, through conversations with the district attorney's office, that there may have been a problem with the labeling from when the samples were collected." As a result, the lab requested that a brand new set of DNA samples be collected. In February 2010, a new set of samples were submitted and the testing was done again from scratch. Ms. Moyse testified that the testing of the second set of DNA samples established that the DNA of Mr. Henry matched that of R.C.'s baby such that it was 99.99% certain that Mr. Henry was her baby's father.
Don Hancock, an Orleans Parish Sheriffs Office employee, testified that he oversaw operations and maintained the telecommunications systems at the jail. As part of his duties, he handled jail house telephone calls. He stated that all inmate calls are recorded, memorialized, can be copied to CD, and can be transcribed. He identified a CD of Mr. Henry's recorded calls for the period from July 12, 2009, through September 20, 2009, and the transcript of those calls. This CD was played for the jury, and the transcript was published for the jury.
N.O.P.D. Officer Joseph Pollard, who was qualified by joint stipulation as a fingerprint expert, identified the fingerprints belonging to Mr. Henry that he took in court that day. He then identified a certified copy of an arrest register and the matching certified pack from case No. 260-856. These documents showed that Mr. Henry had pled guilty in 1978 to attempted aggravated rape. Officer Pollard testified that he compared the right print from the fingerprint of Mr. Henry's prints that he took in court that day with the fingerprints on the back of the arrest register connected to Mr. Henry's prior conviction.
A review of the record for errors patent reveals none.
Mr. Henry's first assignment of error is that the trial court erred in admitting evidence of Mr. Henry's prior conviction for attempted aggravated rape. Before trial the State filed a notice of its intent to use evidence of similar crimes pursuant to La. C.E. art. 412.2. In that notice, the State expressed its intent to introduce evidence of Mr. Henry's previous sex crime with a juvenile victim; to wit:
On October 12, 2010, the trial court granted the State's request to introduce La. C.E. art. 412.2 evidence at trial. At trial, the State, over the defense's objection, introduced evidence of Mr. Henry's 1978 conviction for the July 1977 rape.
A trial court's ruling on the admissibility of evidence will not be overturned absent an abuse of discretion. State v. Wright, 11-0141, pp. 10-11 (La.12/6/11), 79 So.3d 309, 316 (citing State v. Cosey, 97-2020 (La. 11/28/00), 779 So.2d 675, 684). This same standard is applied to rulings on the admission of other crimes evidence under La. C.E. art. 404(B)(1) and evidence under La. C.E. art. 412.2. Wright, supra.
The governing statutory provision on this issue is La. C.E. art. 412.2, which provides, in pertinent part:
In order for any evidence deemed to fall within La. C.E. art. 412.2 to be admissible, it must pass the balancing test of La. C.E. art. 403, which provides: "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time."
Addressing the meaning of the "unfair prejudice" component of the balancing test, the Louisiana Supreme Court in State v. Rose, 06-0402, p. 13 (La.2/22/07), 949 So.2d 1236, 1244, noted that "[a]ny inculpatory evidence is `prejudicial' to a defendant, especially when it is `probative' to a high degree." Id. (citing State v. Germain, 433 So.2d 110, 118 (La.1983)). The Supreme Court further noted that "[a]s
In this case, Mr. Henry argues that the other crime evidence was "so stale as to have greatly diminished any probative value it may have originally provided." He emphasizes that he was only sixteen years old — a child himself — at the time of the prior crime. He thus submits that the prior crime was a criminal sexual act committed by one child against another, and did not, thirty years thereafter, serve to indicate his lustful disposition toward children. The State counters that Mr. Henry erred in focusing his argument solely on the "lustful disposition toward children" aspect of La. C.E. art. 412.2. The State points out that La. C.E. art. 412.2 also provides that "evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior ... may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403." The State argues that Mr. Henry failed to establish prejudice based on either the remoteness in time or his youth at the time of the prior offense.
Summarizing the jurisprudence addressing the lack of a temporal limit on sex crimes admissible under Article 412.2, a commentator states:
Bobby Harges & Russell Jones, LA. PRAC. EVIDENCE, Art. 412.2, n. 28 (2012 ed.)(citing State v. Buckenberger, 07-1422 (La.App. 1 Cir. 2/8/08), 984 So.2d 751; and State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365). Accordingly, "the fact that the prior sex offenses occurred many years before trial is not significant as the legislature did not set forth a time limitation in Article 412.2." Willis, 05-218 at p. 31, 915 So.2d at 388.
Likewise, this court in State v. Scoggins, 10-0869 (La.App. 4 Cir. 6/17/11), 70 So.3d 145, writ denied, 11-1608 (La.2/10/12), 79 So.3d 1033, rejected the argument that the remoteness in time of a prior sex offense
On appeal, the defendant in Scoggins argued that the single instance of his assaultive behavior on the female family friend that occurred ten years before the crime for which he was being tried was so remote in time as to have had no probative value. Rejecting that argument, this court reasoned that "[r]emoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect." Scoggins, 10-0869 at pp. 13-14, 70 So.3d at 154 (citing State v. Jackson, 625 So.2d 146 (La.1993)). We also noted the general rule that "a lapse in time will go to the weight of the evidence, rather than to its admissibility." Id.
A similar issue regarding the remoteness of prior sex offenses was addressed is State v. Driggers, 554 So.2d 720 (La.App. 2d Cir.1989).
Despite the age differences between the parties to the prior offense and the instant offenses, and the significant lapse of time between the two offenses, it cannot be said, considering all of the facts and circumstances of this case, that the trial court abused its discretion in concluding that the probative value of the prior offense was not substantially outweighed by its prejudicial effect.
Regardless, the erroneous admission of other crimes evidence is subject to a harmless error analysis. Scoggins, supra. Harmless error exists where the guilty verdict actually rendered was "surely unattributable" to the error. State v. Higginbotham, 11-0564, p. 3 (La.5/6/11), 60 So.3d 621, 623. The prior and instant offenses were clearly distinct. Mr. Henry concedes that the State's case against him was very strong, including DNA evidence establishing he is the father of R.C.'s child. According credit to the good sense and fairmindedness of the jury, the guilty verdicts rendered in the instant case were surely unattributable to any error by the trial court in admitting evidence of the prior offense. This assignment of error lacks merit.
Mr. Henry's second assignment of error is that the trial court erred in denying his motion for a mistrial based on the prosecutor's alleged improper rebuttal argument. During rebuttal argument the following occurred:
The general rules governing closing and rebuttal argument are set forth in La. C.Cr.P. art. 774. The scope of closing argument shall be confined to the evidence admitted, the lack of evidence, conclusions of fact that the State or the defendant may draw therefrom, and the law applicable to the case. La.C.Cr.P. art. 774. Closing argument shall not appeal to prejudice.
Prosecutors may not resort to argument involving personal experience or turn argument into a plebiscite on crime. State v. Fortune, 10-0599, p. 8 (La.App. 4 Cir. 12/22/10), 54 So.3d 761, 766; State v. Jackson, 08-0286, p. 10 (La.App. 4 Cir. 4/29/09), 11 So.3d 524, 532-33. Prosecutors, however, have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036; Jackson, 08-0286, p. 10-11, 11 So.3d at 533. A trial court has broad discretion in controlling the scope of closing arguments. Casey, supra; State v. Jones, 10-0018, p. 9 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 833. Even when the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless thoroughly convinced that the argument influenced the jury and contributed to the verdict. State v. Wiltz, 08-1441, p. 6 (La.App. 4 Cir. 12/16/09), 28 So.3d 554, 558; State v. Harvey, 08-0217, p. 4 (La.App. 4 Cir. 5/13/09), 12 So.3d 496, 499. Even when the prosecutor's statements are improper, a reviewing court should accord credit to the good sense and fairmindedness of the jury that heard the evidence. Harvey, supra.
Upon motion of a defendant a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it "impossible for the defendant to obtain a fair trial." La.C.Cr.P. art. 775. However, a "[m]istrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La. C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown." State v. Burton, 09-0826, p. 10 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1080 (quoting State v. Castleberry, 98-1388, p. 22 (La.4/13/99), 758 So.2d 749, 768). A trial court has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Leonard, 05-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. A trial court's decision as to whether actual prejudice has occurred and whether a mistrial is warranted will not be overturned on appeal absent an abuse of that discretion. State v. Maxwell, 11-0564, p. 25 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 128.
Considering the circumstances of the present case and according credit to the good sense and fairmindedness of the jury, it cannot be said that one would be thoroughly convinced that the rebuttal argument complained of either improperly influenced the jury or contributed to the verdict. The comments by the prosecutor were not so prejudicial as to deprive Mr. Henry of his right to a fair trial. Thus, it cannot be said that the trial court abused its discretion in denying Mr. Henry's motion for mistrial. This assignment of error lacks merit.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
554 So.2d at 727. The appellate court still further reasoned that all of the victims of the prior offenses were relatives and neighbors of the defendant, which was a factor contributing to the pattern of the defendant's conduct.